A senior import/export coordinator was given a verbal warning after his employer had received complaints about job interview questions he asked women regarding their marital status and pregnancy intentions.

The employee said he “was trying to protect the company as a lot of training needed to be done and then someone who may get pregnant would just go on leave”.

Whilst accepting the questions were inappropriate he defended his actions with respect to one of the candidates, on the basis that both of them are of Chinese background, and in Chinese culture these questions are okay.

Other behavioural issues involving the employee came to light, and the employer decided it needed to take action. It couriered a Warning Letter and Performance Improvement Plan (PIP) to the employee’s home, the day after he began annual leave.

The employee emailed the employer saying that the Warning Letter was unlawful and amounted to “workplace bullying and oppression”.

When the employee returned to work, he met with the HR manager and his manager, he informed them that he would not participate in the PIP.

Two days later, a group of managers received an email from the company informing them that the employee’s last day would be in 3 days. One of the recipients forwarded the email to the employee and they wished him well.

The employee sought an explanation. At a meeting with his manager and HR he was told he could still participate in the PIP if he wanted to do so. He declined and he was terminated.

The employee filed an Unfair Dismissal Application with the Fair Work Commission.

The Commission found that meeting when the employee returned from leave was “a classic case of an employer ‘going through the motions’ of giving an employee an opportunity to respond when, in substance, a firm decision to terminate had already been made”.

That the employee learned of his termination via a colleague who forwarded him an email about arrangements following his departure [was] deplorable”.

The FWC found that the employee’s refusal to participate in the PIP constituted a valid reason for his dismissal. It amounted to a failure to follow a reasonable and lawful direction. However, the employer’s failure to adequately notify the employee of that reason or provide an opportunity to respond, meant that the dismissal was harsh and unreasonable.

The employee sought reinstatement. This was strenuously opposed by the employer.

The FWC agreed that there was a loss of trust and confidence and the lack of insight of the employee meant that re-establishing the relationship is not feasible.

The employee was awarded $12,932.52 (plus super) in compensation.

Take Out Points: A dismissal will be found to be harsh and unreasonable when employers ‘go through the motions’ and have pre-determined outcomes, rather than complying with their procedural fairness obligations. Pregnancy and marital status questions in job interviews are never OK.  

See: Ning Li v PPD Australia Pty Ltd [2022] FWC 496 (15 March 2022) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2022/496.html

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